Randall L. Kennedy

Michael R. Klein Professor of Law

Biography

Randall Kennedy is Michael R. Klein Professor at Harvard Law School where he teaches courses on contracts, criminal law, and the regulation of race relations. He was born in Columbia, South Carolina. For his education he attended St. Albans School, Princeton University, Oxford University, and Yale Law School. He served as a law clerk for Judge J. Skelly Wright of the United States Court of Appeals and for Justice Thurgood Marshall of the United States Supreme Court. He is a member of the bar of the District of Columbia and the Supreme Court of the United States. Awarded the 1998 Robert F. Kennedy Book Award for Race, Crime, and the Law, Mr Kennedy writes for a wide range of scholarly and general interest publications. His other books are For Discrimination: Race, Affirmative Action, and the Law (2013), The Persistence of the Color Line: Racial Politics and the Obama Presidency (2011), Sellout: The Politics of Racial Betrayal (2008), Interracial Intimacies: Sex, Marriage, Identity, and Adoption (2003), and Nigger: The Strange Career of a Troublesome Word (2002). A member of the American Law Institute, the American Academy of Arts and Sciences, and the American Philosophical Association, Mr. Kennedy is also a Trustee emeritus of Princeton University.

Areas of Interest

Contracts

Race and the Law: Intersection of Racial Conflict and Legal Institutions in American Life

Timely—as the 2012 presidential election nears—and controversial, here is the first book by a major African-American public intellectual on racial politics and the Obama presidency.
Renowned for his cool reason vis-à-vis the pitfalls and clichés of racial discourse, Randall Kennedy—Harvard professor of law and author of the New York Times best seller Nigger: The Strange Career of a Troublesome Word—gives us a keen and shrewd analysis of the complex relationship between the first black president and his African-American constituency.
Kennedy tackles such hot-button issues as the nature of racial opposition to Obama, whether Obama has a singular responsibility to African Americans, electoral politics and cultural chauvinism, black patriotism, the differences in Obama’s presentation of himself to blacks and to whites, the challenges posed by the dream of a postracial society, and the far-from-simple symbolism of Obama as a leader of the Joshua generation in a country that has elected only three black senators and two black governors in its entire history.
Eschewing the critical excesses of both the left and the right, Kennedy offers a gimlet-eyed view of Obama’s triumphs and travails, his strengths and weaknesses, as they pertain to the troubled history of race in America.

In Interracial Intimacies, Randall Kennedy hits a nerve at the center of American society: race relations and our most intimate ties to each other. Writing with the same piercing intelligence he brought to his national bestseller Nigger: The Strange Career of a Troublesome Word, Kennedy here challenges us to examine how prejudices and biases still fuel fears and inform our sexual, marital, and family choices.
Analyzing the tremendous changes in the history of America’s racial dynamics, Kennedy takes us from the injustices of the slave era up to present-day battles over race matching adoption policies, which seek to pair children with adults of the same race. He tackles such subjects as the presence of sex in racial politics, the historic role of legal institutions in policing racial boundaries, and the real and imagined pleasures that have attended interracial intimacy. A bracing, much-needed look at the way we have lived in the past, Interracial Intimacies is also a hopeful book, offering a potent vision of our future as a multiracial democracy.

Randall L. Kennedy, Race, Crime, and the Law (Pantheon 1997).

Categories:

Criminal Law & Procedure

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Government & Politics

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Discrimination & Civil Rights

Sub-Categories:

Criminal Justice & Law Enforcement

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Race & Ethnicity

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Type: Book

Abstract

In this groundbreaking, powerfully reasoned, lucid work that is certain to provoke controversy, Harvard law professor Randall Kennedy takes on a highly complex issue in a way that no one has before. Kennedy uncovers the long-standing failure of the justice system to protect blacks from criminals, probing allegations that blacks are victimized on a widespread basis by racially discriminatory prosecutions and punishments, but he also engages the debate over the wisdom and legality of using racial criteria in jury selection. He analyzes the responses of the legal system to accusations that appeals to racial prejudice have rendered trials unfair, and examines the idea that, under certain circumstances, members of one race are statistically more likely to be involved in crime than members of another.

Randall Kennedy, The Journalist and the Murderers, N.Y. Times, Mar. 8, 2020, at BR14 (reviewing Jerry Mitchell, Race Against Time, A Reporter Reopens the Unsolved Murder Cases of the Civil Rights Era (2020)).

Randall Kennedy, Harvard Betrays a Law Professor,N.Y. Times, May 17, 2019, at A29.

Categories:

Legal Profession

Sub-Categories:

Legal Education

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Legal Services

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Type: News

Randall Kennedy, Derrick Bell and Me (Mar. 8, 2019).

Categories:

Legal Profession

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Disciplinary Perspectives & Law

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Discrimination & Civil Rights

Sub-Categories:

Race & Ethnicity

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Civil Rights

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Critical Legal Studies

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Biography & Tribute

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Legal Education

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Legal Reform

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Legal Scholarship

Type: Other

Abstract

This paper describes Professor Derrick Bell’s life in the law, assesses his writings, appraises his struggles at Harvard Law School, and recounts his relationship with a colleague, Randall Kennedy, for whom he was a mentor, friend, and adversary.

What should we focus upon in marking the 50th anniversary of this somber landmark? I suggest three things: the particulars of King's achievements as a liberal dissident; the trying circumstances he faced at the end of his life; and the virtues of his principal strategy and aim-coalition politics in the service of a decent, egalitarian, multiracial society. At the end of his career, then, King found himself assailed from the right and the left, from those who resented him for challenging pigmentocracy effectively, from those who alleged (mistakenly) that the civil rights movement had changed little on the ground, from those who complained that he had shown too little gratitude and loyalty to LBJ, and from those who charged that he did not adequately condemn American society. A vivid instance is the claim that King opposed affirmative action and kindred efforts to assist racially identified groups. On this side of the Second Reconstruction, having enjoyed for a generation the benefits won with heart-rending sacrifice by King and company, it is all too easy to forget or overlook that prior to the invalidation of de jure segregation, governments could lawfully separate people on a racial basis (which almost always meant consigning people of color to inferior facilities); that prior to the Civil Rights Act, people of color could lawfully be excluded from "private" public accommodations, work sites, hospitals, and unions; that prior to the Voting Rights Act, black voting was openly and brutally nullified by chicanery and violence in many places, including the very state-Alabama-that black voters recently rescued from the clutches of Roy Moore; that prior to Loving v. Virginia in 1967, all of the states of the former Confederacy made it a felony for blacks and whites to intermarry.

Recent conflicts on campus have featured as antagonists proponents of racial justice versus proponents of civil liberties. Many in both camps identify as liberals. A dose of recollection might help dissipate this avoidable and politically destructive strife.

A great many Americans, especially African Americans, are in a mood of despair upon witnessing a president of the United States winking at neo-Confederates, neo- Nazis, and Ku Klux Klansmen, and doing everything in his power to expunge the achievements of his predecessor, a man who came to be known less for his race than for his decency, dignity, and honor. Far too little notice, for example, was given to the remarkable May 19 speech by Mayor Mitch Landrieu explaining the decision of the New Orleans municipal government to remove from places of public honor three monuments celebrating Confederate generals and one celebrating the violent overthrow of the state's multiracial Reconstruction government. Folks numbering in the millions and of all complexions are selfconsciously engaging in countless acts of protest: marching, organizing study groups, volunteering legal expertise, donating money to institutions dedicated to the preservation of threatened values-the NAACP, the ACLU, the Southern Coalition for Social Justice-and resolving in numberless diverse ways to become more active, informed, influential.

Randall Kennedy, State-Enforced Segregation and the Color of Justice, Am. Prospect, July 24, 2017, at 1 (reviewing Richard Rothstein, The Color of Law: The Forgotten Story of How Our Government Segregated America (2017)).

The article discusses the history and legacy of the U.S. Supreme Court case Walker v City of Birmingham, particularly its significance to the First Amendment to the U.S. Constitution, the civil rights movement led by Dr. Martin Luther King, Jr., and Jim Crowism in Alabama under then-governor George Corley Wallace.

This essay contends that, despite its revisionist ethos, Professor Ackerman’s We the People: The Civil Rights Revolution is conventional in its assessment of Brown v. Board of Education. Ackerman praises Brown as “the greatest judicial opinion of the twentieth century.” But the Supreme Court in Brown evaded offering a candid explanation of the white supremacist purpose animating de jure racial segregation. Absent from the most honored race relations decision in American constitutional law is any express reckoning with racism.

Randall L. Kennedy, For Discrimination: Race, Affirmative Action, and the Law (Vintage 2013).

Categories:

Labor & Employment

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Discrimination & Civil Rights

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Race & Ethnicity

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Civil Rights

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Employment Discrimination

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Type: Book

Abstract

For Discrimination is at once the definitive reckoning with one of America’s most explosively contentious and divisive issues and a principled work of advocacy for clearly defined justice.
What precisely is affirmative action, and why is it fiercely championed by some and just as fiercely denounced by others? Does it signify a boon or a stigma? Or is it simply reverse discrimination? What are its benefits and costs to American society? What are the exact indicia determining who should or should not be accorded affirmative action? When should affirmative action end, if it must? Randall Kennedy gives us a concise and deeply personal overview of the policy, refusing to shy away from the myriad complexities of an issue that continues to bedevil American race relations.

Kennedy grapples with a stigmatized phrase: "selling out," or racial betrayal, a subject of much anxiety and acrimony in Black America. He atomizes the changing meanings of the term and shows how its usage bedevils blacks and whites. He begins his exploration with a historical definition of the "black" community, accounting for who is considered black and who is not. He looks at the ways in which prominent members of that community--Colin Powell, Condoleezza Rice, and Barack Obama, among others--have been stigmatized as sellouts. He outlines the history of the suspicion of racial betrayal among blacks, shows how current fears of selling out are expressed in thought and practice, and offers a case study of the quintessential "sellout"--Supreme Court Justice Clarence Thomas, perhaps the most vilified black public official in American history.

The article discusses Virginia Senator George Allen's troubled history with the "N" word. Allen has denied multiple reports that he commonly used the word in college. The "N" world is the subject of considerable debate and cultural prescriptions concerning its usage are predicated on a racial basis. Allen is likely in so much trouble for his past because of past and present racist actions.

Randall Kennedy, Schoolings in Equality: What Brown Did and Did Not Accomplish, New Republic, July 5, 2004, at 29 (reviewing Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (1975) & Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004)).

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Family Law

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Discrimination & Civil Rights

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Government & Politics

Sub-Categories:

Discrimination

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Race & Ethnicity

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Education Law

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Judges & Jurisprudence

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Supreme Court of the United States

Type: Article

Abstract

Reviews the books "Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for equality," by Richard Kluger and "From Jim Crow to Civil Rights: The Supreme Court and The Struggle for Racial Equality," by Michael J. Klarman.

Randall Kennedy, Schoolings in Equality: What Brown Did and Did Not Accomplish, 231 New Republic 29 (2004) (reviewing Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (2004) & Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004)).

Categories:

Discrimination & Civil Rights

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Family Law

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Government & Politics

Sub-Categories:

Discrimination

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Civil Rights

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Race & Ethnicity

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Education Law

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Supreme Court of the United States

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Type: Article

Abstract

Kennedy reviews Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality by Richard Kluger and From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality by Michael J. Klarman.

Randall L Kennedy, Schoolings in Equality: What Brown Did and Did Not Accomplish, New Republic, July 5, 2004, at 29 (reviewing Richard Kluger, Simple Justice (2004)).

Randall L. Kennedy, From Protest to Patronage, The Nation, Sept. 29, 2003, at 25 (reviewing John D'Emilio, Lost Prophet: The Life and Times of Bayard Rustin (2003) and Time on Two Crosses: The Collected Writings of Bayard Rustin (Devon W. Carbado & Donald Weise eds., 2003).

Categories:

Discrimination & Civil Rights

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Disciplinary Perspectives & Law

Sub-Categories:

Civil Rights

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Race & Ethnicity

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LGBTQ Rights Law

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Law & Social Change

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Type: Article

Abstract

The article reviews the books "Lost Prophet: The Life and Times of Bayard Rustin," by John D'Emilio, and "Time on Two Crosses: The Collected Writings of Bayard Rustin," edited by Devon W. Carbado and Donald Weise.

Americans are already what racial purists have long feared: a people characterized by a great deal of racial admixture, or what many in the past referred to distastefully as "mongrelization." In pigmentation, width of noses, breadth of lips, texture of hair, and other telltale signs, the faces and bodies of millions of Americans bear witness to interracial sexual encounters. Some were joyful, passionate, loving affairs. Many were rapes. Others contained elements of both choice and coercion. These different kinds of interracial intimacy and sexual depredation all reached their peak in the United States during the age of slavery, and following the Civil War they decreased markedly. Since the end of the civil-rights revolution interracial dating, interracial sex, and interracial marriage have steadily increased, as has the number of children born of interracial unions. This development has prompted commentators to speak of the "creolization" or "browning" or "beiging" of America.

The Boston City Council voted in December without dissent in favor of an ordinance that would have banned the use of the word “minority” from official city documents. City Council President Charles Yancey justified the ordinance on the grounds that the offending term "implies inferiority and inequity among Americans," that growing numbers of people within racial "minority" groups object to the word, and that the term is inaccurate, at least in Boston where blacks, Asians, and Hispanics now constitute the majority of the city population. The term [minority] is anachronistic and demeaning," Yancey is reported to have asserted.
Another motivation is a desire to reject customs of identification that are designed to insult. Until the 1930s, even major newspapers and the United States Government Printing Office federal spelled "Negro" with a small "n" in deference to racial mores that minimized the social status of Negro Americans. Not until 1963 did the Board on Geographic Names remove "nigger" from federal government maps that previously bore such place names as Nigger Lake, Niggerhead Hill, and Old Nigger Creek.
Contrary to what has been asserted by champions of this dubious linguistic reform, there is little evidence that substantial numbers of African-Americans, Asian-Americans, Latino-Americans, white Americans or any other sort of Americans object to the term. In August a news report in this newspaper asserted that the term "minority" is encountering "a growing chorus of criticism across the country."

Randall L. Kennedy, Nigger: The Strange Career of a Troublesome Word (Pantheon 2002).

Categories:

Government & Politics

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Discrimination & Civil Rights

Sub-Categories:

Race & Ethnicity

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Civil Rights

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Discrimination

Links:

Type: Book

Abstract

It’s "the nuclear bomb of racial epithets," a word that whites have employed to wound and degrade African Americans for three centuries. Paradoxically, among many black people it has become a term of affection and even empowerment. The word, of course, is nigger, and in this candid, lucidly argued book the distinguished legal scholar Randall Kennedy traces its origins, maps its multifarious connotations, and explores the controversies that rage around it.
Should blacks be able to use nigger in ways forbidden to others? Should the law treat it as a provocation that reduces the culpability of those who respond to it violently? Should it cost a person his job, or a book like Huckleberry Finn its place on library shelves? With a range of reference that extends from the Jim Crow south to Chris Rock routines and the O. J. Simpson trial, Kennedy takes on not just a word, but our laws, attitudes, and culture with bracing courage and intelligence.

"The 1921 Tulsa Race Riot was the country's bloodiest civil disturbance of the century. With perhaps 150 dead, 30 city blocks burned to the ground, and more than a thousand families homeless, the riot represented an unprecedented breakdown of the rule of law. It left the prosperous black community of Greenwood, Oklahoma reduced to rubble." "In Reconstructing the Dreamland, Alfred Brophy draws on his own extensive research into contemporary accounts and court documents to chronicle this devastating riot, showing how and why the rule of law quickly eroded. Brophy offers a gut-wrenching portrait of mob violence and racism run amok, both on the night of the riot and the morning after, when a coordinated sunrise attack, accompanied by airplanes, stormed through Greenwood, torching and looting the community. Equallty important, he shows how the city government and police not only permitted the looting, shootings, and burning of Greenwood, but actively participated in it. The police department, fearing that Greenwood was erupting into a "negro uprising" (which Brophy shows was not the case), deputized white citizens haphazardly, gave out guns and badges with little background check, or sent men to hardware stores to arm themselves. Likewise, the Tulsa-based units of the National Guard acted unconstitutionally, arresting every black resident they could find, leaving Greenwood property vulnerable to the white mob, special deputies, and police that followed behind and burned it."--Jacket.

As the battle over the federal judiciary heats up, progressives must convince the general public of a basic proposition--the judiciary is an inescapably political branch of government whose agents, the judges, should be viewed in much the same way other politicians are. Progressives should strive to shape the judiciary in such a way that will produce good, sound, progressive rulings.

The reluctance of Senate Democrats to block John Ashcroft's nomination for Attorney General in President George W. Bush's administration highlights the weakness of the party as a vehicle for liberal politics. Many Democrats fear that Ashcroft will allow his fundamentalist religious beliefs to interfere with his ability to perform the job.

The US Supreme Court's intervention into the presidential election created a new right to uniform treatment in ballot counting. Some critics of the Court's intervention are sidestepping the sobering reality of the situation: that the Court majority acted in bad faith and with partisan prejudice.

In this essay, originally delivered as part of the David C. Baum Memorial Lecture Series on Civil Liberties and Civil Rights at the University of Illinois College of Law, Professor Randall L. Kennedy examines the use of the word "nigger" as a problem in the law. He argues that while use of the "N-word" should be limited, it should not be eradicated. He believes that “erasing it altogether would, among other things, destroy a significant part of our cultural heritage that is used in positive as well as negative ways.” Finally, Professor Kennedy posits that "nigger" may be undergoing a transformation to a "term of derision... [affixed] to targets regardless of race."

No racial group has been more solidly supportive of President Clinton than black Americans. The best explanation for blacks' widespread and enthusiastic support of Clinton is the perception that he has been supportive of them.

This special series of feature articles in this journal hopes to rekindle critical discussion of integration by examining whether it remains, thirty years after the end of the civil rights era, a desirable goal and a viable political strategy. The seven essays that follow do not claim to cover every aspect of the subject, or to represent all points of view within today's political spectrum. One conceive of this as a discussion within the journal's extended family, focused on questions essential to a modem assessment of integration. Although racial discourse in America has increasingly moved away from the bipolar categories of white and Afro-Americans, these essays address the experience of African-Americans and how fully American society lives up to its professed creed of equal rights and opportunities for all.

One concrete way of measuring the extent to which people affiliated with different social groups are full and equal members of this nation is to ask whether a person associated with that group could plausibly be elevated to the highest office in the land. The added difficulties, solely on the basis of race or gender, that an African-American or female presidential candidate faces, regardless of that person’s talents, are a testament to the extent to which this society is still marked by racism and sexism. One might take some minimal comfort, though, in recognizing that their difficulties are the consequence...

Randall Kennedy, Is Affirmative Action on the Way Out? Should it be? A Symposium, 105 Commentary 35 (1998).

The Supreme Court case of Oyama v. California (1948) involved an application of the California Alien Land Law in the mid-1940s. This law prohibited aliens ineligible for American citizenship from owning or transferring agricultural land. Barred from owning agricultural property himself, Oyama purchased land for his son, Fred Oyama, a US citizen by birth. California claimed the purchases were a fraudulent evasion of the Alien Land Law and pursued an escheat of the lands. The majority opinion invalidated the statute as applied. Justice Frank Murphy, in a 24-page concurrence, places the case in context of the history of anti-Japanese racism and notes the manifold ways in which that bigotry manifested itself in the legal controversy.